ILLINOIS POLLUTION CONTROL BOARD

UPROCEDURAL BACKGROUND

February 19, 2009

ILLINOIS ENVIRONMENTAL

PROTECTION,

Complainant,

THEODORE and ELIZABETH

HOLLEMBEAK and HOLLEMBEAK

(Administrative Citation)

OPINION AND ORDER OF THE BOARD (by A.S. Moore):

On January 23, 2009, Theodore Hollembeak, Elizabeth Hollembeak, and Hollembeak

Construction, Inc. (collectively, respondents) filed a “Motion to Dismiss” (Mot.). Respondents

request that the Board dismiss the petition for review filed by Theodore Hollembeak. Mot. at 1;

see

IEPA v. Theodore Hollembeak, Elizabeth Hollembeak, and Hollembeak Construction, Inc.

AC 09-2 (July 21, 2008) (petition for review).

Below, the Board first reviews the procedural history of this case before addressing the

motion to dismiss. After deciding that motion, the Board issues its final order regarding all three

of the respondents.

PROCEDURAL BACKGROUND

On July 11, 2008, the Illinois Environmental Protection Agency (Agency) timely filed an

administrative citation against the respondents.

See

415 ILCS 5/31.1(c) (2006); 35 Ill. Adm.

Code 108.202(c). The Agency alleged that respondents violated Sections 21(p)(1), (p)(3), and

(p)(7) of the Environmental Protection Act (Act) (415 ILCS 5/21(p)(1), (p)(3), (p)(7) (2006)).

The Agency alleged that respondents violated these provisions by causing or allowing the open

dumping of waste in a manner resulting in litter, open burning, and the deposition of general

construction or demolition debris or clean construction or demolition debris at Hollembeak

Concrete, Inc.’s Brown County facility.

On July 21, 2008, Theodore Hollembeak filed a petition for review (Pet.) denying the

allegations and stating that there were uncontrollable circumstances pertaining to the alleged

violations. Pet. at 1;

see

35 Ill. Adm. Code 108.206. In an order dated August 7, 2008, the

Board stated that, although it had not yet received proof of service from the Agency, it accepted

the petition as timely filed. In the same order, the Board noted that, although an individual may

represent himself or herself, a non-attorney cannot represent another person in a Board

adjudicatory proceeding, such as an administrative citation action.

See

35 Ill. Adm. Code

101.400(a). The Board also noted that any person other than an individual must appear through

an attorney-at-law licensed and registered to practice law.

See id.

Because the petition was

signed by Theodore Hollembeak and failed to identify Theodore Hollembeak as an attorney, the

Board directed Elizabeth Hollembeak and Hollembeak Concrete, Inc. to file an amended petition

through an attorney-at-law if either of them wished to contest the citation. The Board’s order

stated that, if Elizabeth Hollembeak and Hollembeak Concrete, Inc. failed to file an amended

petition in a timely manner, it would enter a default order against them.

On September 25, 2008, the Agency filed proof that it had timely served the

administrative citation on Theodore and Elizabeth Hollembeak on July 10, 2008, and on

Hollembeak Concrete, Inc. on July 12, 2008.

In an order dated November 5, 2008, the Board noted that it had received the Agency’s

proofs of service, acknowledged accepting as timely a petition filed by Theodore Hollembeak on

behalf of the respondents on July 21, 2008, and directed Elizabeth Hollembeak and Hollembeak

Concrete, Inc. to file an amended petition within 14 days of the date of the order. In the same

order, the Board stated that, if it did not within 14 days receive an amended petition accompanied

by an attorney’s appearance from Elizabeth Hollembeak and Hollembeak Concrete, Inc., it

would enter a default order against them and proceed to hearing only as to Theodore

Hollembeak. The Board did not receive a timely amended petition from either Elizabeth

Hollembeak or from Hollembeak Concrete, Inc., and no attorney had filed an appearance on

behalf of either of the two of them.

In an order dated December 4, 2008, the Board acknowledged that it had previously

accepted as timely a petition for review filed by Theodore Hollembeak. In the same order, the

Board found that Elizabeth Hollembeak and Hollembeak Construction, Inc. had defaulted by

failing to file an amended petition to contest the administrative citation. The Board therefore

found that Elizabeth Hollembeak and Hollembeak Construction, Inc. had violated the Act as

alleged by the Agency in its administrative citation. Although the Board directed the hearing

officer to proceed to hearing with regard only to Theodore Hollembeak, the Board withheld

issuing its final order regarding Elizabeth Hollembeak and Hollembeak Concrete, Inc. until the

Board made its final determination regarding Theodore Hollembeak.

On January 23, 2009, respondents filed a motion to dismiss the petition for review.

DISCUSSION

In the motion to dismiss the petition for review, respondents state that, “since the filing of

the original Petition by Theodore Hollembeak, Elizabeth Hollembeak, and Hollembeak

Construction, Inc., a decision was made by the parties to pay the fines as imposed by the Illinois

Environmental Protection Agency and to request dismissal of the petition for hearing.” Mot. at

Section 101.500(d) of the Board’s procedural rules provides in pertinent part that,

“[w]ithin 14 days after service of a motion, a party may file a response to the motion. If no

response is filed, the party will be deemed to have waived objection to the granting of the

motion, but the waiver of objection does not bind the Board or the hearing officer in its

disposition of the motion.” 35 Ill. Adm. Code 101.500(d). The Board has received no response

to respondents’ motion to dismiss.

The Board grants the motion to dismiss and dismisses the petition for review filed on July

21, 2008. The administrative citation is therefore “non-contested” (35 Ill. Adm. Code 108.406),

and the Board must find that Theodore Hollembeak committed the alleged violations and impose

the statutory civil penalty. 415 ILCS 5/31.1(d)(1) (2006); 35 Ill. Adm. Code 108.500(a);

see

IEPA v. Harold Graves, AC 06-23, slip op. at 2 (Sept. 6, 2007), citing IEPA v. Lester Smith,

ASC 05-2, slip op. at 1 (Oct. 6, 2005). Accordingly, the Board finds that Mr. Hollembeak

violated Sections 21(p)(1), (p)(3), and (p)(7) of the Act (415 ILCS 5/21(p)(1), (p)(3), (p)(7)

(2006)). In this regard, the Board notes that it previously found that Elizabeth Hollembeak and

Hollembeak Construction, Inc. had both violated those provisions. IEPA v. Theodore

Hollembeak, Elizabeth Hollembeak, and Hollembeak Construction, Inc.

, AC 09-2, slip op. at 3

(Dec. 4, 2008). Having now found that each of the three respondents has violated the Act as

alleged in the Agency’s citation, the Board proceeds below to its final order in this proceeding.

The civil penalty for violating any provision of Section 21(p) is $1,500 for each violation,

except that the penalty increases to $3,000 for each second or subsequent adjudicated violation

of that provision.

See

415 ILCS 5/42(b)(4-5) (2006); 35 Ill. Adm. Code 108.500(a)(2). Because

there are three violations of Section 21(p) and nothing in this record suggests that these are

second or subsequent adjudicated violations, the total civil penalty is $4,500. The motion to

dismiss suggests that respondents have decided to pay the statutory penalties instead of

contesting the violations alleged by the Agency.

See

Mot. at 1. As provided in the order below,

respondents are not required to pay the statutory $4,500 penalty if they have already paid it.

See

IEPA v. Harold Graves, AC 06-23, slip op. at 2 (Sept. 6, 2007), citing IEPA v. Olen G. Parkhill

AC 00-16 (Feb. 3, 2000). Under Section 31.1(d)(1) of the Act (415 ILCS 5/31.1(d)(1) (2006)),

the Board attaches the administrative citation and makes it part of the order below.

This opinion and order constitutes the Board’s findings of fact and conclusion of law.

ORDER

The Board grants the motion to dismiss and dismisses the petition for review of

the administrative citations.

The Board finds that Theodore Hollembeak, Elizabeth Hollembeak, and

Hollembeak Construction, Inc. violated Sections 21(p)(1), (p)(3), and (p)(7) of the

Act (415 ILCS 5/21(p)(1), (p)(3), (p)(7) (2006)).

Unless respondents have already done so, respondents must pay the statutory civil

penalty of $4,500 no later than Monday, March 9, 2009, which is the first

business day following the 30th day after the date of this order.

Respondents must pay the civil penalty by certified check or money order,

made payable to the Illinois Environmental Protection Trust Fund. The

case number, case name, and respondents’ social security number(s) or

federal employed identification number(s) must be included on the

certified check or money order.

Respondents must send the certified check or money order to:

Illinois Environmental Protection Agency

Fiscal Services Division

1021 N. Grand Ave. E.

PO Box 19276

Springfield, IL 62794-9276

Penalties unpaid within the time prescribed will accrue interest under Section

42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2006)) at the rate

set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)

(2006)).

Payment of the statutory civil penalty does not prevent future prosecution if

violations continue.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2006);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statue, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on February 19, 2009, by a vote of 5-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board

ADMINISTRATIVE CITATION

REC.. _

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLF,

S OFF

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

THEODORE & ELIZABETH HOLLEMBEAK

and HOLLEMBEAK CONCRETE, INC.,

Respondents.

JURISDICTION

This Administrative Citation is issued pursuant to the authority vested in the Illinois

Environmental Protection Agency by Section 31.1 of the Illinois Environmental Protection Act, 415

ILCS 5/31.1 (2006).

FACTS

That Theodore and Elizabeth Hollembeak are the present owners and Hollembeak

Concrete, Inc. is the current operator ("Respondents") of a facility located at 402 Pittsfield Road, Mt.

Sterling, Brown County, Illinois. The property is commonly known to the Illinois Environmental

Protection Agency as Mt. Sterling/Hollembeak Concrete.

That said facility is an open dump operating without an Illinois Environmental

Protection Agency Operating Permit and is designated with Site Code No. 0090105033.

That Respondents have owned/operated said facility at all times pertinent hereto.

That on May 30, 2008, William Zierath of the Illinois Environmental Protection

Agency's Springfield Regional Office inspected the above-described facility. A copy of his

inspection report setting forth the results of said inspection is attached hereto and made a part

hereof.

VIOLATIONS

Based upon direct observations made by William Zierath during the course of his May 30,

2008 inspection of the above-named facility, the Illinois Environmental Protection Agency has

determined that Respondents have violated the Illinois Environmental Protection Act (hereinafter,

the "Act") as follows:

(1)

That Respondents caused or allowed the open dumping of waste in a manner

resulting in litter, a violation of Section 21(p)(1) of the Act, 415 ILCS 5/21(p)(1)

(2006).

(2)

That Respondent caused or allowed the open dumping of waste in a manner

resulting in open burning, a violation of Section 21(p)(3) of the Act, 415 ILCS

5/21(D)(3)(2006).

(3)

That Respondents caused or allowed the open dumping of waste in a manner

resulting in deposition of general construction or demolition debris; or clean

construction or demolition debris, a violation of Section 21(p)(7) of the Act, 415 ILCS

5/21(p)(7) (2006).

CIVIL PENALTY

Pursuant to Section 42(b)(4-5) of the Act, 415 ILCS 5/42(b)(4-5) (2006), Respondents are

subject to a civil penalty of One Thousand Five Hundred Dollars ($1,500.00) for each of the

violations identified above, for a total of Four Thousand Five Hundred Dollars ($4,500.00). If

Respondents elect not to petition the Illinois Pollution Control Board, the statutory civil penalty

specified above shall be due and payable no later than August 15, 2008, unless otherwise provided

by order of the Illinois Pollution Control Board.

If Respondents elect to contest this Administrative Citation by petitioning the Illinois Pollution

Control Board in accordance with Section 31.1 of the Act, 415 ILCS 5/31.1 (2006), and if the Illinois

Pollution Control Board issues a finding of violation as alleged herein, after an adjudicatory hearing,

Respondents shall be assessed the associated hearing costs incurred by the Illinois Environmental

Protection Agency and the Illinois Pollution Control Board. Those hearing costs shall be assessed

in addition to the One Thousand Five Hundred Dollar ($1,500.00) statutory civil penalty for each

violation.

Pursuant to Section 31.1(d)(1) of the Act, 415 ILCS 5/31.1(d)(1) (2006), if Respondents fail

to petition or elect not to petition the Illinois Pollution Control Board for review of this Administrative

Citation within thirty-five (35) days of the date of service, the Illinois Pollution Control Board shall

adopt a final order, which shall include this Administrative Citation and findings of violation as

alleged herein, and shall impose the statutory civil' penalty specified above.

When payment is made, Respondents check shall be made payable to the Illinois

Environmental Protection Trust Fund and mailed to the attention of Fiscal Services, Illinois

Environmental Protection Agency, 1021 North Grand Avenue East, P.O. Box 19276, Springfield,

Illinois 62794-9276. Along with payment, Respondents shall complete and return the enclosed

Remittance Form to ensure proper documentation of payment.

If any civil penalty and/or hearing costs are not paid within the time prescribed by order of the

Illinois Pollution Control Board, interest on said penalty and/or hearing costs shall be assessed

against the Respondents from the date payment is due up to and including the date that payment is

received. The Office of the Illinois Attorney General may be requested to initiate proceedings

against Respondents in Circuit Court to collect said penalty and/or hearing costs, plus any interest

accrued.

PROCEDURE FOR CONTESTING THIS

ADMINISTRATIVE CITATION

Respondents have the right to contest this Administrative Citation pursuant to and in

accordance with Section 31.1 of the Act, 415 ILCS 5/31/1 (2006). If Respondents elect to contest

this Administrative Citation, then Respondents shall file a signed Petition for Review, including a

Notice of Filing, Certificate of Service, and Notice of Appearance, with the Clerk of the Illinois

Pollution Control Board, State of Illinois Center, 100 West Randolph, Suite 11-500, Chicago, Illinois

60601. A copy of said Petition for Review shall be filed with the Illinois Environmental Protection

Agency's Division of Legal Counsel at 1021 North Grand Avenue East, P.O. Box 19276, Springfield,

Illinois 62794-9276. Section 31.1 of the Act provides that any Petition for Review shall be filed within

thirty-five (35) days of the date of service of this Administrative Citation or the Illinois Pollution

Control Board shall enter a default judgment against the Respondents.

Dougla

Illinois

Environmental

Scott, DirectorProtection ?

Susan E. Konzelmann, Legal Assistant

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

FicFeerVED

1 2008

Pollution

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

THEODORE & ELIZABETH HOLLEMBEAK

and HOLLEMBEAK CONCRETE, INC.,

Respondents.

FACILITY:?

Mt. Sterling/Hollembeak Concrete SITE CODE NO.:

Please enter the date of your remittance, your Social Security number (SS) if an individual or

Federal Employer Identification Number (FEIN) if a corporation, and sign this Remittance Form. Be

sure your check is enclosed and mail, along with Remittance Form, to Illinois Environmental

Protection Agency, Attn.: Fiscal Services, P.O. Box 19276, Springfield, Illinois 62794-9276.